Adam Marshall
As part of our community association practice I am often asked by clients to review their rules and regulations. While this may seem like a rather simple task, it many times is made more complicated by Board confusion over what they have authority to control through the rules and regulations. Put simply HOA and condominium associations can create reasonable rules and regulations to govern common areas. Meaning, as long as the rules and regulations are reasonable and not in conflict with the Declaration, of Covenants, Conditions, and Restrictions (“Declaration”), the Board of Directors can adopt rules and regulations concerning the use and enjoyment of property that is owned by, or in the case of a condominium, managed by the association (e.g. parking lots, pool, private streets and other open areas). These rules and regulations can be adopted, amended, or terminated by the Board of Directors without the association member approval.
Rules and regulations are distinguished from Declarations, in that the Declaration restricts conduct on the private property of a Lot owner. Restrictions of the type that would be in the Declaration must be recorded with the office of the local Register of Deeds, and in order to be amended, must receive a vote or written consent of the association membership. For example, stating that an owner must park their car in their driveway or garage, must be in the Declaration, however, stating where association members may park their cars in the pool parking lot can be accomplished via the rules and regulations.
The problem point we see most often with rules and regulation documents is that Boards enact requirements of owners that are really restrictions that should be in the Declaration. Using the parking example above, I have seen Boards attempt to tell owners where they must park their cars on their private Lot in the rules and regulations. This type of restriction must be in the recorded Declaration. As another example, rules and regulations could state that you cannot ride an ATV on the association common area, however, they could not state that ATVs are prohibited in the community altogether without such a restriction being in the Declaration.
Another area in which rules and regulations can inadvertently cause heartburn for an association is when provisions may run afoul of the Fair Housing Act (“FHA”). The Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, familial status, or disability. The issue we most often see involving this Act is when rules and regulations could be seen as singling out families with children (familial status). Associations should consult with their attorney to make sure that the Board, while likely having good intentions, is not creating potential FHA problems.
Lastly, Boards sometimes use the rules and regulations to further define or clarify items found in the Declaration. This is not something that can be accomplished with this type of association document. For example, if the Declaration says that owners must maintain their Lot and the structures or other improvements thereon, without anything more, then the rules and regulations may not state that as part of the owner’s maintenance responsibilities they must install a new roof every 15 years or that a lawn may not be over 6 inches in height. Those are restrictions that, in order to be enforced, must be in the recorded Declaration.
There are many pitfalls that can arise when drafting rules and regulations. Boards should make it a point to contact their HOA or condominium association attorney for guidance. Our attorneys at Law Firm Carolinas. in both our Greensboro and Charlotte offices have extensive experience in reviewing these documents to ensure that they accomplish the goals of the association, while at the same time being compliant with the Declaration and State and Federal Law.